Introduction
Intelligence services play a crucial role in protecting
national security and helping law enforcement to
uphold the rule of law. This is particularly true across
the European Union (EU) today, with terrorism, cyberattacks and organised crime groups located outside of
the Union all posing serious threats to Member States.
EU Member States working both nationally and in
partnership – and in cooperation with other states,
such as the United States – are increasingly using digital
intelligence methods to fight these threats. Intelligence
services’ capabilities include collection, interception and
analysis of communications and metadata, hacking and
computer network exploitation, as well as data mining
of databases containing personal information. Such
methods have implications for the fundamental rights
of European citizens – such as privacy and freedom of
expression – and their use must always be justified in
a way that respect to those rights is ensured. Strong
safeguards are necessary to ensure that they are used
in accordance with law, and that interference with
some rights to protect others, such as the right to
life, only takes place when justified as necessary and
proportionate, as allowed for by the ECHR.
The 2013 Snowden revelations showed that the
United States (US) and some EU Member States were
involved in what is colloquially referred to as ‘mass
surveillance’ activities. This prompted discussions at
several institutions, especially national parliaments.
The inquiry committee of the German parliament
published a particularly encompassing report in
June 2017.1 The EU also reacted strongly. At the time,
the European Commission, the Council of the EU and the
European Parliament all reported on the revelations.
They expressed concern about mass surveillance
programmes, sought clarification from US authorities,
and worked on “rebuilding trust” in transatlantic
relations. 2 The Snowden revelations also damaged
the trust of EU citizens towards public authorities,
intelligence services and technological companies
providing communication software and hardware.
“The culture in the secret services is one of secrecy, and the
present culture in society is to be as open as possible. The
key element for the existence of the secret services today
is what is called trust. Trust in society that they act between
the borders of the law. For that you need to become more
transparent than you were before.”
(FRA interview with expert body, 2016)
1
2
Germany, Federal Parliament (Deutscher
Bundestag) (2017b).
FRA (2014a), p. 81 and following; FRA (2015a).
(In)effectiveness of mass surveillance
“More generally, […] it was found that massive eavesdropping measures, besides raising compatibility issues with
fundamental rights and compliance with necessity and
proportionality principles, as at various time delineated by
European case law, prove to be inefficient.
The equation that a greater volume of available data and
information would automatically result in better results in
terms of security and prevention was not demonstrated.”
Italy, COPASIR (2017), p. 12
“The bulk powers play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. Where alternative methods
exist, they are often less effective, more dangerous, more
resource-intensive, more intrusive or slower.”
Anderson, A. (2016), p. 1
On 12 March 2014, the EP adopted a resolution on
the US National Security Agency (NSA) surveillance
programme, surveillance bodies in various Member
States and their impact on EU citizens’ fundamental
rights, and transatlantic cooperation in Justice and Home
Affairs.3 The resolution drew on the in-depth inquiry
that the EP tasked the Civil Liberties, Justice and Home
Affairs Committee (LIBE) with conducting during the
second half of 2013, shortly after the revelations on
mass surveillance were published in the press.4
The wide-reaching resolution launched a “European
Digital Habeas Corpus – Protecting fundamental
rights in a digital age” focusing on eight key actions.
The resolution also called on the EU Agency for
Fundamental Rights (FRA) “to undertake in-depth
research on the protection of fundamental rights in
the context of surveillance, and in particular on the
current legal situation of EU citizens with regard to
the judicial remedies available to them in relation
to those practices”.5
In 2015, FRA published the report Surveillance by
intelligence services: fundamental rights safeguards
and remedies in the EU – Mapping Member States’ legal
frameworks (hereinafter the ‘2015 FRA report’).6 The
2015 FRA report presents the legal safeguards that the
28 EU Member States had for ensuring that surveillance
measures do not violate fundamental rights. Since
then, EU Member States have suffered serious terrorist
attacks, triggering a state of emergency in France; have
3
4
5
6
European Parliament (2014), hereafter: the resolution.
See FRA (2014a).
European Parliament (2014), paras. 132 and 35.
FRA (2015a).
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